But Rumold argued that the OLC, in this case, was acting as the voice of Attorney General Eric Holder and there was little additional policy left for the FBI to implement. The OLC was "deciding concrete issues," he said, and those final decisions of agencies are subject to open-records requirements.
The three judges asked pointed questions of both sides but Judges David Sentelle and Harry Edwards seemed at times skeptical of the EFF's argument. "It's all a matter of advice," not a binding decision, Sentelle said.
In order for the EFF to win the case, it may need to prove the FBI adopted the OLC decision as its rules, Edwards added. "It is not necessarily conclusive when OLC does something like this, that it is the law," he said.
But Edwards also questioned Tenny about whether the FBI adopted the OLC's advice in arguing that it supported its past surveillance practices. In some other cases, DOJ legal opinions have had the force of law on agency practices, but in those cases, there was a direct impact on the public, Tenny said.
Edwards said the surveillance programs also have a direct impact on the public. "This is law being applied to the public," he said. "Those who are complaining about what's being done are asking for the justification."
It's important for the OLC decision to be made public so that U.S. residents and lawmakers can better debate U.S. surveillance programs, Rumold said after the hearing.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is firstname.lastname@example.org.